2019 UT App 142

THE UTAH COURT OF APPEALS

PAUL JOHN HATTRICH,

Appellant,

v.

STATE OF UTAH,

Appellee.

Opinion

No. 20170158-CA

Filed August 22, 2019

Sixth District Court, Richfield Department

The Honorable Marvin D. Bagley

No. 150600030

Elizabeth Hunt, Attorney for Appellant

Sean D. Reyes and Daniel W. Boyer, 

Attorneys for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, 

in which JUDGES GREGORY K. ORME and JILL M. POHLMAN

concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 Paul John Hattrich appeals from the district court’s 

summary judgment in favor of the State and denial of his 

petition for post-conviction relief. We affirm.

BACKGROUND

¶2 Hattrich occasionally invited a neighbor child (Victim) 

over to do yard work, play video games, and take care of 

Hattrich’s dogs. At some point, Hattrich began showing Victim 

print, digital, and video pornography and later performed oral 

sex on Victim. Eventually, he would perform oral sex on Victim 

about once a week through the summer but less frequently 
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during the school year. Hattrich told Victim that he had engaged 

in sex acts with other children, including Victim Two and Victim 

Three.

¶3 Between 1995 and 1999, Hattrich frequently engaged in 

oral sex with Victim Two and had anal sex with him twice. The 

abuse usually occurred at Hattrich’s home, and Hattrich once 

videotaped the crime. Hattrich also gave Victim Two free access 

to pornography.

¶4 When Victim Three was about ten or eleven, he and the 

two other victims went to Hattrich’s house approximately two to

three times per week. Hattrich took all three boys hunting, let 

them spend time at his house, and let them look at pornographic 

movies and magazines in his home. When the boys visited, 

Hattrich also sexually abused them.

¶5 The State charged Hattrich with thirty criminal acts 

involving the three victims, including rape of a child, sodomy on 

a child, aggravated sexual abuse of a child, sexual abuse of a 

child, and dealing in material harmful to a minor. Before the 

preliminary hearing, Hattrich filed three motions: (1) a motion to 

change venue, (2) a motion to dismiss nine charges of 

aggravated sexual abuse of a child, and (3) a motion to sever 

some of the charged offenses for purposes of trial.1 The trial 

court2 denied all three motions but did sever two charges to be 

 

1. In his motion to sever, Hattrich asked the court to conduct 

seven separate criminal trials, with each trial resolving between 

two and eight of the charged offenses.

2. The present appeal stems from the district court’s summary 

judgment ruling on Hattrich’s petition for post-conviction relief,

a matter that, though challenging the underlying criminal 

convictions, is civil in nature. See Finlayson v. State, 2015 UT App 

31, ¶ 17, 345 P.3d 1266 (observing that “a post-conviction

proceeding is ultimately civil in nature and does not implicate 

(continued...)
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20170158-CA 3 2019 UT App 142

tried separately—the charges alleging Hattrich’s dealing in 

material harmful to a minor.

¶6 Following a preliminary hearing, the trial court bound 

Hattrich over on twenty-seven separate counts. The State 

subsequently amended the information to reflect these twentyseven charges—eliminating from the original information one 

count dismissed at the preliminary hearing and removing the 

two charges that had been severed.

¶7 Hattrich filed three additional motions after the 

preliminary hearing: (1) a motion to dismiss the amended 

information on multiplicity grounds or, in the alternative, to 

reduce the counts; (2) a motion to quash the bindover on 

eighteen of the charges; and (3) a motion to dismiss the amended 

information. Hattrich’s trial counsel also prepared and filed a 

witness list and exhibit list in anticipation of trial.

¶8 The day before trial was to commence, Hattrich pleaded 

no contest to three charges of sodomy on a child, each a firstdegree felony. In exchange, the State agreed to dismiss the 

remaining twenty-four charges and to recommend that 

Hattrich’s sentence on each charge run concurrently to the

others. Hattrich believed that, by pleading no contest, he could 

effectively avoid the potential twenty-five-years-to-life sentences 

that would be imposed if he were convicted of the two childrape charges. Those charges were to be dismissed as part of the 

plea agreement. Hattrich conditioned his no contest plea on 

retaining his “right to appeal any issues which have arisen or 

 

(...continued)

the same constitutional protections as do criminal prosecutions” 

(quotation simplified)). To avoid any confusion, we refer to the 

court presiding over Hattrich’s criminal case as the trial court 

and refer to the court overseeing his post-conviction matter as 

the district court. We note, however, that the same judge 

presided over both matters and that no trial occurred.
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20170158-CA 4 2019 UT App 142

been litigated in this case.” As part of his plea, Hattrich signed a 

“Waiver of Rights by Defendant” (the Waiver) in which he

acknowledged that he read, understood, and agreed with the 

provisions of the Waiver, including that he made his plea of no 

contest of his “own free will and choice.” Hattrich also affirmed 

that he understood that by pleading no contest, he was giving up 

certain constitutional protections. During the plea hearing, the 

trial court conducted a plea colloquy during which Hattrich 

affirmed that he understood the terms of the plea agreement and 

Waiver.

¶9 The trial court accepted Hattrich’s no contest pleas and 

sentenced him to fifteen years to life in prison on each of the 

three charges. Consistent with the State’s recommendation, the 

court ordered the sentences to run concurrently. Hattrich 

appealed his convictions, raising several issues, and this court 

affirmed. See State v. Hattrich, 2013 UT App 177, 317 P.3d 433.

¶10 Hattrich subsequently filed a petition for post-conviction 

relief, asserting three reasons his convictions should be vacated. 

He first asserted that his no contest pleas were not knowing and 

voluntary because he did not understand that his reserved right 

of appeal was limited by the preservation and briefing 

requirements associated with an appeal. Second, he contended 

that the prosecution had breached the plea agreement by raising 

preservation and inadequate-briefing challenges to Hattrich’s 

direct appeal. Third, Hattrich alleged certain instances of 

ineffective assistance by his trial and appellate counsel.3 Hattrich 

also filed a request for discovery relating to one of his ineffective 

assistance claims, which the district court denied.

¶11 The State and Hattrich each filed motions for summary 

judgment. After briefing and oral argument, the district court 

granted the State’s motion and denied Hattrich’s motion.

 

3. Hattrich was represented by the same counsel in the trial court 

and on appeal.
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20170158-CA 5 2019 UT App 142

ISSUES AND STANDARDS OF REVIEW

¶12 Hattrich raises a number of issues on appeal. He first 

argues that the district court erred in granting summary 

judgment to the State with respect to Hattrich’s claims that he 

should be permitted to withdraw his no contest pleas because 

they were not knowingly and voluntarily entered and that the 

State’s appellate counsel breached the plea agreement. He also 

argues that the court erred in granting summary judgment to the 

State on his various claims that he received ineffective assistance 

of counsel in both pre-trial matters and on appeal. We review the 

district court’s grant of summary judgment for correctness, 

affording no deference to the district court. Garcia v. State, 2018 

UT App 129, ¶ 8, 427 P.3d 1185. “We will affirm such a decision 

when the record shows that there is no genuine issue as to any 

material fact and that the moving party is entitled to a judgment 

as a matter of law.” Id. (quotation simplified); see also Utah R. 

Civ. P. 56(a). “In making this assessment, we view the facts and 

all reasonable inferences drawn therefrom in the light most 

favorable to the nonmoving party.” Ross v. State, 2012 UT 93, 

¶ 18, 293 P.3d 345 (quotation simplified).

¶13 Hattrich further argues that the district court erred when 

it denied his request for discovery in pursuing his postconviction petition. We review the district court’s discovery 

decisions for an abuse of discretion. Menzies v. Galetka, 2006 UT 

81, ¶ 59, 150 P.3d 480.

ANALYSIS

I. Hattrich’s Knowing and Voluntary Conditional No

Contest Pleas

¶14 Hattrich asserts that he did not knowingly and 

voluntarily enter his conditional no contest pleas in which he 

reserved the right to appeal. “A plea is not knowing and 

voluntary when the record demonstrates that the accused does 
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20170158-CA 6 2019 UT App 142

not understand the nature of the constitutional protections that 

he is waiving, or when he has such an incomplete understanding 

of the charge that his plea cannot stand as an intelligent 

admission of guilt.” State v. Alexander, 2012 UT 27, ¶ 16, 279 P.3d 

371 (quotation simplified). Further, a court must permit a 

defendant to withdraw a guilty plea when “the State made a 

promise it did not or could not fulfill.” State v. Copeland, 765 P.2d 

1266, 1276 (Utah 1988); accord State v. Norris, 2002 UT App 305, 

¶ 10, 57 P.3d 238.

¶15 Here, after a thorough plea colloquy, the trial court 

concluded that Hattrich understood the proposed waiver of trial 

rights listed in the plea agreement and that he “voluntarily and 

intentionally waived [these] constitutional rights.” Indeed, 

Hattrich informed the trial court that he had read the agreement, 

understood it, and signed it of his own volition. Moreover, 

Hattrich acknowledged the factual basis for the plea and stated 

that he understood the legal elements and potential punishment 

associated with criminal charges to which he wished to plead no 

contest. The trial court therefore accepted Hattrich’s no contest 

pleas and proceeded to sentencing.

¶16 Hattrich’s primary argument4 in support of his claim that 

he did not knowingly and voluntarily enter the conditional plea 

 

4. Hattrich additionally asserts that the plea agreement was not 

properly incorporated into the record because the court did not 

ask Hattrich whether he had read the agreement. See State v. Lehi, 

2003 UT App 212, ¶ 9, 73 P.3d 985. There is no merit to this 

assertion because it is clear from the record that the court 

explicitly asked Hattrich, “Did you read the agreement before 

you signed it?” And Hattrich answered, “Yes, I did, Your 

Honor.”

Hattrich also asserts that he was improperly coerced to 

plead because he mistakenly believed he could be subject to 

rape-of-a-child charges if he did not, when in actuality those 

charges should have been for the lesser offense of sodomy on a 

(continued...)
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20170158-CA 7 2019 UT App 142

agreement rests on his assertion that the agreement’s “plain 

language purported to allow Hattrich to appeal ‘any issues 

which have arisen or been litigated in this case,’ regardless of 

whether the issue was preserved in the trial court or properly 

presented on appeal,” despite this not being something the State 

could deliver. See Copeland, 765 P.2d at 1276. Hattrich raised six 

issues on direct appeal. See generally State v. Hattrich, 2013 UT 

App 177, 317 P.3d 433. The State contested some of these claims 

on the grounds that Hattrich failed to preserve them in the trial 

court and that he did not adequately brief them on appeal. 

Resolving Hattrich’s direct appeal, this court declined to 

consider one of the claims5 Hattrich raised both because it was 

unpreserved and because “[Hattrich’s] plea agreement limits the 

issues he may raise on appeal to those ‘which have arisen or 

been litigated in this case.’” Id. ¶¶ 24, 46.

 

(...continued)

child. But Hattrich has provided no support for his repeated 

assertion that these charges should have been reduced, as 

discussed infra ¶¶ 37–38.

Finally, Hattrich asserts for the first time on appeal that he 

mistakenly believed that the rape-of-a-child charges carried a 

twenty-five-to-life sentence, when he actually would have been 

subject to only a fifteen-to-life sentence under the version of the 

Utah Code in effect at the time the offenses were committed.

Compare Utah Code Ann. § 76-5-402.1 (Michie 1996), with id.

(LexisNexis 2017). However, this issue is not preserved, and 

Hattrich has not asserted that it should be considered under an 

exception to the preservation rule. We therefore do not consider 

it further. See State v. King, 2006 UT 3, ¶ 13, 131 P.3d 202.

5. This court identified two issues that Hattrich had failed to 

preserve in the district court but nevertheless resolved one of 

those issues on the merits. See State v. Hattrich, 2013 UT App 177, 

¶ 25, 317 P.3d 433.
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20170158-CA 8 2019 UT App 142

¶17 Hattrich asserts that had he been aware that his appeal 

would be limited by our preservation and briefing requirements, 

he would not have entered the plea. He further asserts that the 

plea agreement was illusory because the State purported to 

eliminate those procedural requirements as part of the 

consideration for the agreement, yet had no authority to do so, 

see Utah R. App. P. 1(a) (“These rules govern the procedure 

before the Supreme Court and the Court of Appeals of Utah in 

all cases.” (emphasis added)); State v. Johnson, 2017 UT 76, ¶ 18, 

416 P.3d 443 (observing that “parties are required to raise and 

argue an issue in the trial court in such a way that the court has 

an opportunity to rule on it” and the failure to do so “generally 

precludes a party from arguing that issue in an appellate court, 

absent a valid exception” (quotation simplified)); MacKay v. 

Hardy, 973 P.2d 941, 947–48 (Utah 1998) (observing that the Utah 

Rules of Appellate Procedure “set forth the requirements that 

appellants and appellees must meet when submitting briefs 

before [Utah’s appellate courts]” and that appellate courts have 

consistently held “that we will not address issues not adequately 

briefed”). He relatedly contends that the State breached the plea 

agreement when it argued that he failed to preserve certain 

issues in the trial court and failed to adequately brief certain 

issues on appeal.

¶18 We apply contract principles when interpreting plea 

agreements. State v. Davis, 2011 UT App 74, ¶ 3 n.2, 272 P.3d 745. 

And we generally begin such a review by “looking first to the 

plain language of a contract.” State v. Terrazas, 2014 UT App 229, 

¶ 27, 336 P.3d 594 (quotation simplified). Here, the reservation of 

Hattrich’s right to appeal in the plea agreement, in its entirety,

reads as follows: “These guilty pleas are conditional on 

[Hattrich’s] right to appeal any issues which have arisen or been 

litigated in this case.”

¶19 The language of the plea agreement is straightforward 

and explicit. It says nothing about removing the otherwise 

uniform expectations of preservation of issues for appeal or 

the requirement that issues raised on appeal must be adequately
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20170158-CA 9 2019 UT App 142

briefed to the appellate court. Hattrich asserts that he believed 

this agreement afforded him the opportunity to challenge 

on appeal—and receive a merits review of—any issue he 

raised, regardless of how well it was briefed and even if it 

was unpreserved and not argued under an exception to 

the preservation rule. But any such belief would have 

been unreasonable in light of the plain language of 

the agreement, which contains nothing suggesting that Hattrich 

would not be bound by the court’s standard procedural rules 

in pursuing his appeal. In light of the clear and unambiguous

language of the agreement, Hattrich’s claim that he

was “genuinely and legitimately confused” about the benefit 

he was to receive under the plea agreement is unpersuasive.6 See 

State v. Norris, 2002 UT App 305, ¶ 12, 57 P.3d 238 (quotation 

simplified). Likewise, Hattrich cannot establish that the benefits 

promised to him in the agreement were illusory, because 

the agreement did not purport to grant him the right to avoid 

the preservation rule or standard briefing requirements.

Accordingly, the district court correctly determined, as a 

matter of law, that Hattrich was not entitled to withdraw 

his plea.

¶20 Hattrich also contends that the district court erred 

in determining that the State did not breach the plea agreement

by arguing in the direct appeal that Hattrich had failed 

to preserve certain issues in the trial court and that he had failed 

to adequately brief certain issues. Because we conclude that 

the plea agreement did not purport to eliminate preservation

rules and adequate briefing requirements, Hattrich’s breach 

argument fails as a matter of law.

 

6. Hattrich has asserted no basis for his subjective belief that the 

agreement permitted him to raise unpreserved claims or avoid 

rules of procedure apart from his flawed interpretation of the 

“plain terms” of the plea agreement—for example, that he was 

led to this belief by representations of the prosecutor or another 

individual.
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20170158-CA 10 2019 UT App 142

II. Ineffective Assistance of Counsel

¶21 Hattrich argues that the district court erred when it 

rejected his claims of ineffective assistance of counsel and 

granted the State’s motion for summary judgment. He points to

several instances in which trial and appellate counsel allegedly 

performed deficiently. The district court granted summary 

judgment to the State on each of these claims. We first address 

those claims that are procedurally barred pursuant to the PostConviction Remedies Act (the PCRA), then consider Hattrich’s 

remaining claims.

A. The PCRA’s Procedural Bar

¶22 Hattrich asserted in his PCRA petition that his trial 

counsel was ineffective in litigating pre-trial notice issues and a 

motion regarding joinder of charges. Hattrich raised both of 

these grounds in his original criminal appeal, although he did 

not present them as claims of ineffective assistance of counsel. 

See State v. Hattrich, 2013 UT App 177, ¶¶ 20–21, 36–44, 317 P.3d 

433. The PCRA precludes relief “upon any ground that . . . was 

raised or addressed at trial or on appeal.” Utah Code Ann. § 78B9-106(1)(b) (LexisNexis 2018). This procedural bar “applies to all 

claims, including constitutional questions.” Johnson v. State, 2011 

UT 59, ¶ 10, 267 P.3d 880 (quotation simplified). Even if a PCRA 

claim is “framed somewhat differently,” a post-conviction claim 

will be barred if it is “substantially similar” and “rest[s] on 

arguments” used for a claim “raised at trial or on appeal.” Myers 

v. State, 2004 UT 31, ¶¶ 14 & n.1, 18, 94 P.3d 211. We now 

address two claims that we conclude are barred by the PCRA.

1. Pre-Trial Notice and Charging

¶23 Hattrich argues that his trial counsel performed 

deficiently by failing to adequately challenge the State’s criminal 

charging procedure and the pre-trial notice he was provided. In 

his direct appeal, Hattrich contended that the various charging 

documents “failed to provide adequate notice of the dates and 
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20170158-CA 11 2019 UT App 142

locations of his then-alleged crimes, thereby ‘wreak[ing] havoc 

on [his] ability to defend himself.” Hattrich, 2013 UT App 177, 

¶ 36. The “constantly moving targets in terms of dates, times, 

and events,” he argued, “hampered his defense and violated his 

due process rights.” Id. ¶ 40 (quotation simplified). He asserted 

that it was the State’s burden to show both that its amended 

charging documents did not charge additional or different 

offenses and that the amendments did not prejudice Hattrich’s 

substantial rights. See id. ¶ 38. Relying on our supreme court’s 

ruling in Tillman v. Cook, 855 P.2d 211 (Utah 1993), this court 

rejected Hattrich’s argument, determining that “even if an 

amended information does create a new and additional offense, 

reversal is only appropriate if the defendant can demonstrate 

that his or her substantial rights are prejudiced as a result of the 

amendment.” Hattrich, 2013 UT App 177, ¶¶ 38–39. The court 

then went on to conclude that Hattrich had not established that 

his substantial rights were violated because he was “sufficiently 

apprised of the State’s evidence upon which” his charges were 

based. See id. ¶¶ 39–41.

¶24 Hattrich contends that his appellate counsel did not 

adequately advocate his position on appeal.

7 In assessing this 

 

7. Hattrich also asserts that his appellate counsel was ineffective 

for failing to ensure that the bill of particulars filed by the State 

was included in the record on appeal, which resulted in this 

court assuming that the bill was adequate. See id. ¶ 41. But this 

court’s assessment of the bill of particulars ultimately did not 

affect the outcome of the case, because we observed that “the 

notice to which a defendant is constitutionally entitled may 

come through one or all of three sources” and that the State 

provided Hattrich “with all three forms of notice in this 

instance.” Id. (quotation simplified). In addition to the bill of 

particulars, we observed that “a review of both the Third 

Amended Information and the section 77-14-1 demand response 

confirms that the State gave [Hattrich] sufficiently precise 

notification.” Id. ¶ 42 (quotation simplified).
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20170158-CA 12 2019 UT App 142

argument in the context of the summary judgment, the district 

court found that there was “little practical difference” between 

Hattrich’s ineffective assistance claim and his appellate claim—

“[b]oth contend, at their core, that [Hattrich’s] due process rights 

were violated, and both are precluded by a finding of adequate 

notice.” In other words, Hattrich has pointed to no argument 

that appellate counsel failed to make that would have altered 

this court’s determination that his challenge to the charging 

procedure was defeated by the adequate notice. Hattrich 

essentially reargues the extent to which the amended 

information created new and different offenses that subjected 

him to increased punishment and whether he was substantially 

prejudiced. But these arguments were previously resolved on 

direct appeal. We therefore agree with the district court that this

claim is merely an attempt to re-litigate the same notice claims 

that Hattrich raised on direct appeal. See Gardner v. Holden, 888

P.2d 608, 615 (Utah 1994). The claim is therefore procedurally 

barred. Utah Code Ann. § 78B-9-106(1)(b) (“A person is not 

eligible for relief under this chapter upon any ground that . . . 

was raised or addressed at trial or on appeal . . . .”).

2. Motion to Sever

¶25 Hattrich asserts that certain of his criminal charges “were 

not (1) part of the same conduct or otherwise connected in their 

commission and were not (2) part of the same scheme or plan.” 

See Utah Code Ann. § 77-8a-1(1) (LexisNexis Supp. 2018). 

Consequently, he contends that these criminal charges were 

improperly joined together in the single charging document and 

should have been severed pursuant to Utah Code section 77-8a1(4)(a). Hattrich raised this argument in his direct appeal, and

unpersuaded, this court concluded, “Because the charges were 

properly joined and because Defendant has failed to 

demonstrate any prejudice, the trial court did not abuse its 

discretion by denying Defendant’s motion to sever.” Hattrich, 

2013 UT App 177, ¶ 21. In the instant PCRA petition, Hattrich 

presents the exact same argument through the lens of an 

ineffective assistance of counsel claim. Because this argument 
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20170158-CA 13 2019 UT App 142

was already raised and addressed in Hattrich’s direct appeal,

8

we conclude that the district court correctly granted summary 

judgment to the State on this claim.

B. Remaining Claims of Ineffective Assistance of Counsel

¶26 To prevail on an ineffective assistance of counsel claim, a 

defendant must establish that counsel’s performance was 

objectively deficient and that the deficient performance 

prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 

(1984). “Because both prongs of the Strickland test must be met to 

establish ineffective assistance of counsel, we need not always 

address both prongs.” State v. Goode, 2012 UT App 285, ¶ 7 n.2, 

288 P.3d 306.

1. Communication of a Plea Offer

¶27 Hattrich asserts in his PCRA petition that his trial counsel 

performed deficiently by failing to relay to him information 

about a favorable plea offer. He particularly asserts that while 

counsel allegedly communicated an offer from the State for 

Hattrich to plead guilty to one unspecified first-degree felony, 

counsel did not tell him when that offer would expire. At that 

point, Hattrich asserts, his counsel “left him in the jail to think 

about it until after the offer expired.”

 

8. Although Hattrich asserts that he was prejudiced because 

counsel did not adequately brief this issue on appeal, he has 

made no attempt to show how more complete briefing would 

have altered the outcome. As he observes, this court “looked 

beyond the [allegedly] inadequate filings and independently 

determined that the charges in [Hattrich’s] underlying case were 

properly joined.” Without explaining how better briefing would 

have been likely to alter this court’s decision on the merits, we 

are hard-pressed to see how any inadequate briefing prejudiced 

Hattrich.
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20170158-CA 14 2019 UT App 142

¶28 This general type of claim—the alleged failure to 

communicate a plea offer—is governed by Missouri v. Frye, 566 

U.S. 134 (2012). In that case, Frye’s defense counsel failed to 

communicate a favorable, written plea offer to him, and the offer 

expired. Id. at 138–39. Subsequently, Frye agreed to a less 

favorable plea offer. Id. at 139. The Supreme Court held that “as 

a general rule, defense counsel has the duty to communicate 

formal offers from the prosecution to accept a plea on terms and 

conditions that may be favorable to the accused.” Id. at 145. To 

succeed on a Frye claim then, Hattrich has the burden to show 

(1) that trial counsel failed to communicate a formal offer, (2) 

that the offer’s terms were more favorable than the later offer, 

(3) that Hattrich likely would have accepted the earlier plea 

offer, and (4) that the plea likely would have been entered 

“without the prosecution canceling it or the trial court refusing 

to accept it.” Id. at 145–48. We consider only the first and fourth 

elements and conclude that the district court did not err when it 

granted the State summary judgment on Hattrich’s Frye claim.

¶29 Here, Hattrich asserts that trial counsel communicated the 

State’s offer that he plead guilty to one unspecified first-degree 

felony. In support of his petition, however, Hattrich offered no 

details about the timeline of this alleged offer, when the offer 

was to expire, or even the felony offense the State’s offer 

entailed. In the PCRA proceedings, the State proffered email 

correspondence from the prosecutor in the underlying criminal 

case. The prosecutor, after reviewing the extensive file, found 

only one plea offer dated May 2009 in which the State sought 

Hattrich’s guilty pleas to rape of a child and two counts of 

sodomy on a child, all first-degree felonies.9 The prosecutor also 

indicated that he does not put deadlines on plea offers before 

trial. Considering Hattrich’s non-specific allegations of an earlier 

 

9. Presumably, this was not the offer Hattrich recalls, as it was 

less favorable than the ultimate offer he agreed to, which 

permitted him to plead no contest to three counts of sodomy on 

a child without pleading to any of the child-rape charges.
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20170158-CA 15 2019 UT App 142

offer, the district court concluded that Hattrich could not 

establish a Frye claim. In particular, the court determined that 

Hattrich had not demonstrated that the State’s plea offer was a 

formal offer and concluded that neither the prosecution nor the 

trial court would have prevented the offer from being accepted 

or entered. See id. at 148.

¶30 Hattrich argued that Frye “requires attorneys to promptly 

communicate and consult with their clients concerning all plea 

offers.” Consequently, he contends that trial counsel performed 

deficiently when counsel allowed the alleged plea offer to expire. 

The district court concluded, and we agree, that Frye does not 

impose such a broad requirement. The question before the 

Supreme Court was “whether defense counsel has the duty to 

communicate the terms of a formal offer to accept a plea on 

terms and conditions that may result in a lesser sentence, a 

conviction on lesser charges, or both.” Id. at 145. Indeed, the 

Supreme Court expressed at least some concern regarding “late, 

frivolous, or fabricated claims after a later, less advantageous 

plea offer has been accepted” and suggested, as a protective 

measure, that courts consider “a formal offer [to mean] that its 

terms and its processing can be documented so that what took 

place in the negotiation process becomes more clear if some later 

inquiry turns on the conduct of earlier pretrial negotiations.” Id.

at 146.

¶31 Here, Hattrich produced no documented formal plea offer 

matching the one he alleged had been presented to him. Rather, 

at his request, the original prosecutor reviewed the entire file 

and confirmed that there was no indication that any such offer 

had been made. Accordingly, the district court correctly 

concluded that Hattrich had not established that counsel 

performed deficiently by failing to follow up with Hattrich 

regarding the alleged plea offer.

¶32 The district court further concluded that Hattrich had not 

established that the nondescript plea likely would have been 

entered “without the prosecution canceling it or the trial court 
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20170158-CA 16 2019 UT App 142

refusing to accept it.” See id. at 147. The alleged plea offer, 

resolving allegations of years of child sexual abuse perpetrated 

against three different victims, entailed Hattrich pleading guilty 

to one unspecified first-degree felony and the State presumably 

dismissing the remaining twenty-six charges. Suggesting that the 

plea was likely to be entered by the court, Hattrich asserts that

the criminal trial would have involved “evidentiary difficulties” 

and “discomfort” and that the Board of Pardons has the 

authority to “imprison people for life when necessary in any first 

degree felony case.” We are not persuaded that these vague 

statements, without more, establish a reasonable probability that 

the alleged plea would have been approved by the court.

Because Hattrich did not establish deficient performance of 

counsel, we discern no error in the district court’s decision to 

grant summary judgment to the State.

2. Coercion to Enter the No Contest Plea

¶33 Hattrich asserts that he was “coerced” to enter into the 

plea agreement by his trial counsel who was unprepared for 

trial. Supporting his argument that counsel was not prepared for 

trial, Hattrich pointed to trial counsel’s pre-trial witness list, 

which omitted Hattrich’s brother and misspelled the name of 

Hattrich’s sister. Hattrich further identified trial counsel’s failure 

to obtain “airline tickets demonstrating when Hattrich’s mother 

was staying with him for months at a time when the sexual 

abuse was allegedly occurring in Hattrich’s home.” Lastly, he 

suggested that the timing of the plea—entered the day before 

trial—established trial counsel’s “readily apparent” lack of 

preparation for trial.

¶34 Considering these facts, the district court determined that 

Hattrich had failed to demonstrate either that trial counsel was 

unprepared for trial or that, even if trial counsel had been more 

prepared, Hattrich would have insisted on proceeding to trial 

rather than entering the no contest pleas. On appeal, Hattrich 

simply maintains that trial counsel’s “failure to subpoena 

witnesses, incomplete witness list, [and] unfounded exhibit list 
Hattrich v. State

20170158-CA 17 2019 UT App 142

all sustain Hattrich’s sworn petition averring that trial counsel, 

who was unprepared to try the case, coerced the pleas.”

¶35 Hattrich offers no persuasive argument that he was

coerced into pleading guilty, nor does he explain why the district 

court’s decision was erroneous. Instead, he simply provides 

unsupported, conclusory statements to that effect. For instance, 

he reiterates his primary complaint that the plea agreement 

“should have barred the prosecution from asserting waiver and 

other technical means of avoiding appellate review of Hattrich’s 

claims” and asserts that “[t]his confirms the illusory nature of 

the agreement trial counsel advised and coerced Hattrich to 

accept.”

¶36 Moreover, Hattrich does not confront the district court’s 

determination that his “claim of coercion is refuted by the 

statements he made during the [trial court’s] colloquy,” through 

which statements Hattrich “affirmed he entered the parties’ plea 

agreement of his own free will.” Accordingly, this argument is 

unavailing.

3. Incorrect Charging

¶37 Hattrich contends that trial counsel performed deficiently 

by not challenging two child-rape charges that he asserts should 

have been charged as sodomy on a child. In doing so, he fails to 

establish that the underlying facts could not support child-rape 

charges. “[W]here there is no legal basis to support the argument 

or action that the defendant claims trial counsel should have 

taken, it is pointless to inquire whether the factual record 

supports the defendant’s claim that counsel’s alleged failure 

constituted ineffective assistance.” State v. Litherland, 2000 UT 76, 

¶ 15 n.5, 12 P.3d 92; see also State v. Kelley, 2000 UT 41, ¶ 26, 1 

P.3d 546 (“Failure to raise futile objections does not constitute 

ineffective assistance of counsel.”).

¶38 The Utah Code states that “any touching, however slight, 

is sufficient to constitute the relevant element of the offense” of 
Hattrich v. State

20170158-CA 18 2019 UT App 142

“rape of a child.” Utah Code Ann. § 76-5-407(b)(iv) (LexisNexis 

2017). Hattrich does not address this provision or discuss why 

his action of having anal sex twice with one victim could not 

support these charges under the statute. To the district court, 

Hattrich’s entire argument consisted of two bare assertions: (1) 

that the definition of sexual intercourse in the child-rape statute 

should be limited to “vaginal intercourse” and (2) that “specific 

statutes control over more general ones.” With respect to the first 

assertion, Hattrich relied on Pennsylvania case law and made no 

attempt to explain why Utah’s child-rape statute should employ 

such a definition. With respect to the second, he made no 

attempt to either discuss the parameters of the cited principle or 

apply it to the statutes at hand. The district court rejected this 

discussion as inadequate to demonstrate that Hattrich’s 

proposed challenge to the criminal charges would have been 

successful if they had been raised in the underlying proceedings. 

On appeal, Hattrich engages in even less discussion and simply 

proceeds on the assumption that there was a legitimate basis for 

counsel to have challenged the child-rape charges. Because no 

such basis has been established, Hattrich cannot demonstrate 

that his counsel performed deficiently.

4. Scope of the Search

¶39 Completing a search of Hattrich’s home, police 

discovered a fictional manuscript written by Hattrich. The story 

incorporates a pedophilic character who grooms and sexually 

exploits young boys. Hattrich argues that trial counsel 

performed deficiently by failing to move to suppress this 

manuscript because this particular item of evidence was not 

specifically described in the search warrant and fell outside the 

scope of the warrant authorizing the search. Hattrich explained 

to the district court that the manuscript, at least hypothetically, 

“was powerful prejudicial evidence that would have been 

devastating at trial, as it delved into the mind of the pedophilic 

character, and undoubtedly would have led the jurors to convict 

Hattrich out of subconscious prejudice and on a theory of 

propensity.” In its motion for summary judgment, the State 
Hattrich v. State

20170158-CA 19 2019 UT App 142

suggested several possible reasons why Hattrich’s trial counsel 

might not seek to suppress the manuscript while the parties 

were engaged in plea negotiations.

¶40 In considering this claim of ineffectiveness, the district 

court determined that Hattrich’s support for this claim contained 

little more than “conclusory statements” and that Hattrich had

therefore failed to establish that counsel’s performance, even if 

objectively deficient, was prejudicial. On appeal, Hattrich fares 

no better. While he suggests that the State’s evidence “was 

vulnerable to attack in multiple ways” and that he was 

interested in going to trial, he does not explain why, under the 

circumstances, counsel not filing a motion to suppress 

constituted deficient performance. He does not address the 

State’s suggestions that counsel’s decision may have been a 

tactical one. See State v. Goode, 2012 UT App 285, ¶ 6, 288 P.3d 

306 (stating that an appellate court reviewing a claim of 

ineffective assistance of counsel employs “a strong presumption 

that counsel was competent and effective, giving trial counsel 

wide latitude in making tactical decisions, and we will not 

question such decisions unless there is no reasonable basis 

supporting them” (quotation simplified)). We accordingly affirm 

the district court’s grant of summary judgment on this claim.

5. Warrantless Arrest

¶41 Hattrich contends that trial counsel provided ineffective 

assistance by not challenging Hattrich’s warrantless arrest. 

Hattrich raised this issue in his direct appeal. See State v. Hattrich, 

2013 UT App 177, ¶ 11, 317 P.3d 433. But because the issue was 

unpreserved in the trial court, and because the exceptional 

circumstances exception to preservation did not apply, this court 

declined to address the merits of Hattrich’s claim. Id. ¶ 46.

¶42 In his motion for summary judgment, Hattrich argued 

that his trial counsel should have raised this issue in the trial 

court. He contended that he was “prejudiced by counsel’s failure 

to raise this issue in the trial court and by appellate counsel’s 
Hattrich v. State

20170158-CA 20 2019 UT App 142

failure to assert his right to raise the claim under the plea 

bargain, or under the doctrine of ineffective assistance of trial 

counsel.” The district court determined that Hattrich failed to 

show, “with specific facts or adequate legal analysis,” either that 

counsel’s performance was deficient or that the lack of a 

challenge to the warrantless arrest was prejudicial to his defense.

¶43 The State observes, and we agree, that Hattrich again has 

not demonstrated how a challenge to his warrantless arrest 

would have been meritorious. Absent such a showing, Hattrich 

cannot establish that either trial or appellate counsel’s 

performance was deficient. See State v. Gallegos, 2018 UT App 

192, ¶ 31, 437 P.3d 388 (“When challenging trial counsel’s failure 

to make a motion, part of a defendant’s burden under the 

deficient performance prong is to show that the motion would 

have been successful had it been made.”), cert. granted, 437 P.3d 

1248 (Utah 2019).

¶44 On appeal, Hattrich does not address the bases for the 

district court’s conclusions. The result is to “shift the burden of 

research and argument to the reviewing court,” which is not our 

role. State v. Thomas, 961 P.2d 299, 305 (Utah 1998). We 

accordingly affirm the district court on this claim.

6. Advising Hattrich to Plead No Contest

¶45 Hattrich contends that trial counsel performed deficiently 

by advising him to plead no contest and to agree to the terms of 

the plea agreement. The plea agreement, he argues, could not 

bind the appellate court to ignore preservation and adequate 

briefing requirements in his direct appeal. Because, he contends, 

trial counsel “should not have advised Hattrich to enter into the 

illegal plea bargain,” counsel’s performance was objectively 

deficient. He relatedly argues that appellate counsel performed 

deficiently “in failing to raise the prosecution’s breach of the plea 

agreement on appeal.” In making these arguments, Hattrich 

relies on the theory that, in his view, the terms of the no contest 

plea agreement were illegal and illusory.
Hattrich v. State

20170158-CA 21 2019 UT App 142

¶46 We have already concluded that the plea agreement

allowed Hattrich to appeal, in the ordinary course, issues that 

were raised or litigated in his criminal case but that it did not

purport to excuse him from generally applicable preservation 

and briefing requirements. See supra ¶ 19. Consequently, 

Hattrich cannot establish that counsel was ineffective for 

advising him to agree to the plea agreement’s terms. Likewise, 

he cannot show that appellate counsel performed deficiently 

when counsel did not assert that the State had breached the 

agreement by arguing that Hattrich had failed to preserve 

certain issues and failed to adequately brief certain issues. See

State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546 (“Failure to raise futile 

objections does not constitute ineffective assistance of counsel.”).

For this reason we affirm the district court’s grant of summary 

judgment to the State.

7. Motion to Change Venue

¶47 Hattrich’s trial counsel filed a motion in the trial court

requesting a change of venue. See generally Utah R. Crim. P. 29(c) 

(authorizing a party to request that the case be transferred 

to another county “if a party believes that a fair and impartial 

trial cannot be had in the court location or in the county 

where the action is pending”).10 He asserted that Hattrich is a 

resident of a small community and that the victims “are 

all former residents of the same community.” He argued that 

the twenty-seven charges Hattrich faced, twenty-four of which 

were first-degree felonies, suggested certain conviction “in a 

small, rural area where everyone knows everyone else.” 

In addition, counsel highlighted the egregiousness of the 

charges, noted some publicity in local newspapers about 

 

10. The change of venue provision in rule 29 of the Utah Rules of 

Criminal Procedure has been amended since Hattrich’s trial 

counsel filed his motion in 2010. We cite the current version, 

however, because the provision’s changes are relatively minor 

and because we do not engage in any analysis of the rule.
Hattrich v. State

20170158-CA 22 2019 UT App 142

Hattrich’s case, and ultimately questioned whether the court 

could seat a fair and impartial jury. The trial court denied the 

motion, Hattrich raised this issue in his direct appeal, and this 

court affirmed. See State v. Hattrich, 2013 UT App 177, ¶¶ 12–18, 

317 P.3d 433.

¶48 Hattrich contends that his trial and appellate 

counsel presented inaccurate facts supporting the motion to 

change venue. He asserts that two of the victims were still 

living in the same small town and sparsely populated county 

as Hattrich and had not moved away and grown into adulthood 

as his trial and appellate counsel suggested. He further asserts 

that his counsel “should have argued well-established 

law recognizing that when heinous crimes are committed in 

small communities, the impact on the public consciousness is 

greater and lasts longer, and the likelihood is that more people 

will have been affected by the crimes.” See State v. James, 767 P.2d 

549, 553–54 (Utah 1989) (“In a small town, a major crime is likely 

to be embedded in the public consciousness with greater effect 

and for a longer time than it would be in a large, metropolitan 

area.”).

¶49 The State counters, and we agree, that Hattrich’s counsel 

“litigated venue under the correct governing authority and gave 

the trial and appellate courts ample sense of Hattrich’s close 

contact with the ‘tight-knit’ community . . . , the seriousness of 

his charges, and the publicity surrounding the charges.” Counsel 

argued that the factors identified in James warranted a change in 

venue. See id. at 552. Applying those factors to the facts of 

Hattrich’s case, this court disagreed. Hattrich, 2013 UT App 177, 

¶ 14.

¶50 It is certainly possible that Hattrich’s counsel could have 

offered additional facts to support the change of venue motion

and in the brief on appeal, and perhaps even offered different 

arguments on the point. However, Hattrich does not establish 

that but for counsel’s failure to incorporate additional facts in the 

motion, Hattrich would have rejected the plea agreement and 
Hattrich v. State

20170158-CA 23 2019 UT App 142

insisted on a trial.11 Because he does not establish that he was 

prejudiced by any error of counsel, his claim of ineffective 

assistance of counsel is unsuccessful. See State v. Clark, 2004 UT 

25, ¶ 6, 89 P.3d 162 (“To prove ineffective assistance of counsel, 

defendant must show: (1) that counsel’s performance was 

objectively deficient, and (2) a reasonable probability exists that 

but for the deficient conduct defendant would have obtained a 

more favorable outcome . . . .”). We accordingly affirm the 

district court’s grant of summary judgment to the State on this 

claim.

8. Preliminary Hearing Issues

¶51 Hattrich contends that trial counsel should have renewed 

a motion to continue the preliminary hearing and should have 

argued that Hattrich had a constitutional right to examine an 

absent witness. The district court concluded that Hattrich’s latter 

contention—his confrontation-clause argument—under the state 

and federal constitutions was raised and disposed of in 

Hattrich’s direct appeal. See Hattrich, 2013 UT App 177, ¶¶ 29–

32. Consequently, his confrontation-clause argument was 

precluded under the PCRA. See Utah Code Ann. § 78B-9-

106(1)(b) (LexisNexis 2018). Hattrich does not address this aspect 

of the district court’s decision.

¶52 As to Hattrich’s first contention—that counsel should 

have renewed a motion to continue the preliminary hearing—

the district court concluded that he failed to establish either 

deficient performance or prejudice. On appeal, Hattrich 

generally asserts that “counsel’s deficient performance was 

 

11. To the extent that Hattrich wishes to revisit our decision 

affirming the trial court’s denial of the venue motion, that relief 

is not available through the PCRA. See Utah Code Ann. 

§ 78B-9-106(1)(b) (LexisNexis 2018) (“A person is not eligible for 

relief under this chapter upon any ground that . . . was raised or 

addressed at trial or on appeal.”).
Hattrich v. State

20170158-CA 24 2019 UT App 142

procedurally prejudicial” and that appellate counsel “should 

have raised these claims on direct appeal, utilizing [rule] 23B” of 

the Utah Rules of Appellate Procedure. Without more, Hattrich 

cannot carry his burden of persuasion. Although mentioning 

prejudice, he does not establish it. He does not show, for 

instance, that but for counsel’s failure to renew the motion to 

continue, Hattrich “would have obtained a more favorable 

outcome.” See Clark, 2004 UT 25, ¶ 6. We are therefore 

unpersuaded.

III. The Motion for Discovery

¶53 Finally, Hattrich argues that the district court erred when 

it denied his request for discovery. Rule 65C of the Utah Rules of 

Civil Procedure governs petitions filed under the PCRA. See 

generally Utah Code Ann. §§ 78B-9-101 to -405 (LexisNexis 2018).

Discovery in these proceedings is not automatic, but is 

authorized “upon motion of a party and a determination that 

there is good cause to believe that discovery is necessary to 

provide a party with evidence that is likely to be admissible at 

an evidentiary hearing.” Utah R. Civ. P. 65C(n)(1).

¶54 Both Hattrich and the State moved for summary 

judgment on Hattrich’s petition for post-conviction relief, each 

asserting that there were no genuine disputes as to any material 

facts. See id. R. 56(a). As the briefing proceeded on his motion for 

summary judgment, Hattrich filed a separate motion pursuant to 

rule 65C(n) requesting permission to engage in discovery related 

to his Frye claim. See supra Part II.B.1. Hattrich specifically 

sought the details of the plea negotiations between trial counsel 

and the prosecutor and the details of a plea offer that he alleged 

trial counsel failed to fully communicate. Hattrich’s counsel 

noted she did not believe these factual details were necessary to 

state the Frye claim but requested the discovery nonetheless.

¶55 Importantly, while requesting authorization to engage in 

discovery, Hattrich did not seek to continue the summary 

judgment proceedings on the basis that he could not “present 
Hattrich v. State

20170158-CA 25 2019 UT App 142

facts essential to justify [his] opposition.” See Utah R. Civ. P. 

56(d) (authorizing a court to defer consideration of a summary 

judgment motion to allow further discovery necessary to justify 

a nonmoving party’s opposition). Accordingly, we agree with 

the State that under the circumstances, the district court did not 

abuse its discretion in denying Hattrich’s request for discovery

under rule 65C(n).

CONCLUSION

¶56 The district court correctly granted summary judgment to 

the State and denied Hattrich’s petition for post-conviction relief. 

Hattrich knowingly and voluntarily entered into his no contest 

pleas. The State did not breach the plea agreement by arguing in 

Hattrich’s direct appeal that Hattrich had not preserved certain 

issues in the trial court and that he had inadequately briefed 

certain issues. Hattrich has not established that he received 

constitutionally ineffective assistance of counsel. And the district 

court did not exceed its discretion when it denied Hattrich’s 

motion for discovery. Accordingly, we affirm.